Many government bodies relate to each other through contracts: government departments and agencies; government departments and the Treasury; National Health Service (NHS) purchasers and NHS Trusts. ...
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Many government bodies relate to each other through contracts: government departments and agencies; government departments and the Treasury; National Health Service (NHS) purchasers and NHS Trusts. These ‘internal contracts’ are not, in general, regulated or enforced by the law. This book explores the practical problems encountered by the parties to internal contracts, drawing on evidence from an empirical case study of NHS contracts. It uncovers difficulties in defining the parties' roles; in maintaining good working relationships; and in securing compliance with contractual terms. It then examines the possibility of solving these problems through law. Some commentators, particularly public lawyers, have condemned the law's failure to keep pace with the rise of ‘government by contract’, but few have made specific proposals for reform. The book develops an original public law analysis of internal contracts, interpreting them as mechanisms of accountability from service providers to purchasers. It proposes norms which would help the parties to use their contracts as fair and effective mechanisms of accountability. It also suggests reforms to the institutional framework for internal contracts.Less

Accountability : A Public Law Analysis of Government by Contract

Anne Davies

Published in print: 2001-09-06

Many government bodies relate to each other through contracts: government departments and agencies; government departments and the Treasury; National Health Service (NHS) purchasers and NHS Trusts. These ‘internal contracts’ are not, in general, regulated or enforced by the law. This book explores the practical problems encountered by the parties to internal contracts, drawing on evidence from an empirical case study of NHS contracts. It uncovers difficulties in defining the parties' roles; in maintaining good working relationships; and in securing compliance with contractual terms. It then examines the possibility of solving these problems through law. Some commentators, particularly public lawyers, have condemned the law's failure to keep pace with the rise of ‘government by contract’, but few have made specific proposals for reform. The book develops an original public law analysis of internal contracts, interpreting them as mechanisms of accountability from service providers to purchasers. It proposes norms which would help the parties to use their contracts as fair and effective mechanisms of accountability. It also suggests reforms to the institutional framework for internal contracts.

Accountability is regarded as a central feature of modern constitutionalism. At a general level, this prominence is perhaps unsurprising, given the long history of the idea. However, in many ...
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Accountability is regarded as a central feature of modern constitutionalism. At a general level, this prominence is perhaps unsurprising, given the long history of the idea. However, in many constitutional democracies, including the UK and the USA, it has acquired a particular resonance in contemporary circumstances with the declining power of social deference, the expanding reach of populist accountability mechanisms, and the increasing willingness of citizens to find mechanisms for challenging official decision-making. These chapters seek to explore how ideas of and mechanisms associated with accountability play a part in the contemporary constitution. While the majority of chapters concentrate on the United Kingdom, others provide comparative discussion with particular reference to the United States and aspects of European Union law. The main focus of the volume is the contemporary UK constitution. Chapters are included which analyse the historical context (including the role of Dicey), common law constitutionalism, the constitutional role of Parliament, the constitutional role of the courts, judicial accountability, human rights protection under the constitution and the contribution of non-judicial accountability mechanisms. Further chapters explore the public service principle, the impact of new public management on public service delivery, and the relationship between accountability and regulation. Finally accountability is discussed in the light of constitutional reform including the challenges posed by the ‘multi-layered’ government at the supra national level of EU membership and sub-national national levels of devolution and local government.Less

Accountability in the Contemporary Constitution

Published in print: 2013-11-14

Accountability is regarded as a central feature of modern constitutionalism. At a general level, this prominence is perhaps unsurprising, given the long history of the idea. However, in many constitutional democracies, including the UK and the USA, it has acquired a particular resonance in contemporary circumstances with the declining power of social deference, the expanding reach of populist accountability mechanisms, and the increasing willingness of citizens to find mechanisms for challenging official decision-making. These chapters seek to explore how ideas of and mechanisms associated with accountability play a part in the contemporary constitution. While the majority of chapters concentrate on the United Kingdom, others provide comparative discussion with particular reference to the United States and aspects of European Union law. The main focus of the volume is the contemporary UK constitution. Chapters are included which analyse the historical context (including the role of Dicey), common law constitutionalism, the constitutional role of Parliament, the constitutional role of the courts, judicial accountability, human rights protection under the constitution and the contribution of non-judicial accountability mechanisms. Further chapters explore the public service principle, the impact of new public management on public service delivery, and the relationship between accountability and regulation. Finally accountability is discussed in the light of constitutional reform including the challenges posed by the ‘multi-layered’ government at the supra national level of EU membership and sub-national national levels of devolution and local government.

This work approaches the issue of democratic deficit from the angle of accountability, seen in contemporary society as an essential element of democratic government. It looks at differing ...
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This work approaches the issue of democratic deficit from the angle of accountability, seen in contemporary society as an essential element of democratic government. It looks at differing understandings of the concept in the Member States and at various techniques — political, legal, and managerial — by which accountability can be assured. These include the Parliament as well as national parliaments but extend to less familiar institutions, such as the European Court of Auditors.Less

Accountability in the European Union

Carol Harlow

Published in print: 2002-10-31

This work approaches the issue of democratic deficit from the angle of accountability, seen in contemporary society as an essential element of democratic government. It looks at differing understandings of the concept in the Member States and at various techniques — political, legal, and managerial — by which accountability can be assured. These include the Parliament as well as national parliaments but extend to less familiar institutions, such as the European Court of Auditors.

In the last thirty years, as a result of a neoliberal ideology that extolled so-called free markets and demonized government, America has lost its grasp on its core principle – democracy. Democracy, ...
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In the last thirty years, as a result of a neoliberal ideology that extolled so-called free markets and demonized government, America has lost its grasp on its core principle – democracy. Democracy, the ability of all Americans to participate freely and equally in the political and economic affairs of the country, suffered demonstrable losses. Economically, over the period, the vast majority of Americans have been made worse off as a result of the largest redistribution of wealth from the bottom to the top in American history. Politically, partisan gridlock and sound-bite politics have hampered efforts to seek fairer taxes, responsive and effective regulation, reliable health care, and better education, among other needs. This book explores this last generation of neoliberal government and concludes that those democratic losses can be regained. We know from experience that philosophical pragmatism and political progressivism express the country's creedal democratic values. More simply, our country's political commitment to expanding liberty, equality, and distributive fairness – bedrock values of modern democracy – is historically embedded and has yielded measurable gains. Democracy, American-style, outlawed legally sanctioned racism and sexism, fashioned the American Dream, and created the middle class, among other gains, while at the same time the United States became a global leader in economic and military power. More particularly, those gains were realized through an active, robust, and participatory government. As in the past, a sound regulatory state, while not perfect and in need of reform, is the vehicle to achieve the Constitution's goal of “a more perfect union.”Less

Achieving Democracy : The Future of Progressive Regulation

Sidney A. ShapiroJoseph P. Tomain

Published in print: 2014-01-28

In the last thirty years, as a result of a neoliberal ideology that extolled so-called free markets and demonized government, America has lost its grasp on its core principle – democracy. Democracy, the ability of all Americans to participate freely and equally in the political and economic affairs of the country, suffered demonstrable losses. Economically, over the period, the vast majority of Americans have been made worse off as a result of the largest redistribution of wealth from the bottom to the top in American history. Politically, partisan gridlock and sound-bite politics have hampered efforts to seek fairer taxes, responsive and effective regulation, reliable health care, and better education, among other needs. This book explores this last generation of neoliberal government and concludes that those democratic losses can be regained. We know from experience that philosophical pragmatism and political progressivism express the country's creedal democratic values. More simply, our country's political commitment to expanding liberty, equality, and distributive fairness – bedrock values of modern democracy – is historically embedded and has yielded measurable gains. Democracy, American-style, outlawed legally sanctioned racism and sexism, fashioned the American Dream, and created the middle class, among other gains, while at the same time the United States became a global leader in economic and military power. More particularly, those gains were realized through an active, robust, and participatory government. As in the past, a sound regulatory state, while not perfect and in need of reform, is the vehicle to achieve the Constitution's goal of “a more perfect union.”

This book seeks illumination of three aspects of Anglo-American criminal law by the philosophy of action. These are, first, the general requirement that an accused perform some voluntary act before ...
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This book seeks illumination of three aspects of Anglo-American criminal law by the philosophy of action. These are, first, the general requirement that an accused perform some voluntary act before he can be convicted of crime; second, that that voluntary act have the properties marking it as one of the kinds of acts prohibited by statute, what lawyers call the ‘actus reus’ of crimes; and third, the double jeopardy requirement that no one should be prosecuted or punished more than once for doing but one act instantiating but one offence. These three requirements are seen as part of the ‘general part’ of the criminal law, the part that applies to all crimes and that gives the criminal law a unified structure. As such they aid both the efficient drafting of a criminal code by the legislature and the application/interpretation of criminal codes by courts. The theory of action defended in the book – and from which illumination of the criminal law is sought – in a version of the family of theories known as causal theories of action. The thesis is that actions are those bodily movements caused by volitions when those volitions have those movements as their object, and nothing else. The criminal law's voluntary act requirement is then seen as the requirement that there be such an act. Omissions, states a person is in, thoughts, and involuntary bodily movements such as reflex reactions, are not acts by such a causal theory. The criminal law's actus reus requirement is seen as the requirement that a voluntary act must possess those causal or other properties definitive of the types of action prohibited by a criminal code. And the criminal law's double jeopardy requirements is seen as a conjunctive requirement: first, that no one be punished for the same kind of action, where the identity of act-types is governed by the kinds of acts morality makes wrong; unless the actor did that act more than once, where the identity of act-tokens is governed by the theory of action defended throughout the book. The philosophy of action illuminates the criminal law in these three ways because of certain moral theses, which the book also defends; that criminal liability both does and should track moral responsibility; that moral responsibility exists principally for what we do rather than for who we are, what we think, or what we fail to prevent; that actions causing harms are more blameworthy than actions that only risk or attempt such harms; and that punishment should be in proposition to the number and degree of wrong(s) done.Less

Act and Crime : The Philosophy of Action and its Implications for Criminal Law

Michael S. Moore

Published in print: 2010-08-05

This book seeks illumination of three aspects of Anglo-American criminal law by the philosophy of action. These are, first, the general requirement that an accused perform some voluntary act before he can be convicted of crime; second, that that voluntary act have the properties marking it as one of the kinds of acts prohibited by statute, what lawyers call the ‘actus reus’ of crimes; and third, the double jeopardy requirement that no one should be prosecuted or punished more than once for doing but one act instantiating but one offence. These three requirements are seen as part of the ‘general part’ of the criminal law, the part that applies to all crimes and that gives the criminal law a unified structure. As such they aid both the efficient drafting of a criminal code by the legislature and the application/interpretation of criminal codes by courts. The theory of action defended in the book – and from which illumination of the criminal law is sought – in a version of the family of theories known as causal theories of action. The thesis is that actions are those bodily movements caused by volitions when those volitions have those movements as their object, and nothing else. The criminal law's voluntary act requirement is then seen as the requirement that there be such an act. Omissions, states a person is in, thoughts, and involuntary bodily movements such as reflex reactions, are not acts by such a causal theory. The criminal law's actus reus requirement is seen as the requirement that a voluntary act must possess those causal or other properties definitive of the types of action prohibited by a criminal code. And the criminal law's double jeopardy requirements is seen as a conjunctive requirement: first, that no one be punished for the same kind of action, where the identity of act-types is governed by the kinds of acts morality makes wrong; unless the actor did that act more than once, where the identity of act-tokens is governed by the theory of action defended throughout the book. The philosophy of action illuminates the criminal law in these three ways because of certain moral theses, which the book also defends; that criminal liability both does and should track moral responsibility; that moral responsibility exists principally for what we do rather than for who we are, what we think, or what we fail to prevent; that actions causing harms are more blameworthy than actions that only risk or attempt such harms; and that punishment should be in proposition to the number and degree of wrong(s) done.

This book provides an analysis of the administration of the European Union and the legal framework within which that administration operates. It examines the multifarious approaches, techniques, and ...
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This book provides an analysis of the administration of the European Union and the legal framework within which that administration operates. It examines the multifarious approaches, techniques, and structures of public administration in order to systematize and assess the solutions they offer to political, social, and economic problems. The legal framework of administration is examined from the standpoint of how it meets the demands of specific policy objectives established by democratically accountable decision-makers. Administrative law structures and many of its underlying principles have developed in an evolutionary and isolated manner in each policy area. While aware of the diversity of specific areas, this book takes an overarching approach, setting out the common rules and principles that constitute the general body of EU administrative law. By integrating the disciplines of political and administrative science, and administrative law, the book offers a rich explanation and critique of the complex executive framework of the EU.Less

Administrative Law and Policy of the European Union

Herwig C.H. HofmannGerard C. RoweAlexander H. Türk

Published in print: 2011-10-27

This book provides an analysis of the administration of the European Union and the legal framework within which that administration operates. It examines the multifarious approaches, techniques, and structures of public administration in order to systematize and assess the solutions they offer to political, social, and economic problems. The legal framework of administration is examined from the standpoint of how it meets the demands of specific policy objectives established by democratically accountable decision-makers. Administrative law structures and many of its underlying principles have developed in an evolutionary and isolated manner in each policy area. While aware of the diversity of specific areas, this book takes an overarching approach, setting out the common rules and principles that constitute the general body of EU administrative law. By integrating the disciplines of political and administrative science, and administrative law, the book offers a rich explanation and critique of the complex executive framework of the EU.

Public law has been conceived in many different ways, sometimes overlapping, often conflicting. However, in recent years a common theme running through the discussions of public law is one of loss. ...
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Public law has been conceived in many different ways, sometimes overlapping, often conflicting. However, in recent years a common theme running through the discussions of public law is one of loss. What function and future can public law have in this rapidly transforming landscape, where globalized states and supranational institutions have ever-increasing importance? This book takes stock of the idea, concepts, and values of public law as it has developed alongside the growth of the modern state, and assesses its continued usefulness as a distinct area of legal inquiry and normativity in light of various historical trends and contemporary pressures affecting the global configuration of law in general. Divided into three parts, the first provides a conceptual, philosophical, and historical understanding of the nature of public law, the nature of private law, and the relationship between the public, the private, and the concept of law. The second part focuses on the domains, values, and functions of public law in contemporary (state) legal practice, as seen, in part, through its relationship with private domains, values, and functions. The final part engages with the new legal scholarship on global transformation, analysing the changes in public law at the national level, including the new forms of interpenetration of public and private in the market state, as well as exploring the ubiquitous use of public law values and concepts beyond the state.Less

After Public Law

Published in print: 2013-05-09

Public law has been conceived in many different ways, sometimes overlapping, often conflicting. However, in recent years a common theme running through the discussions of public law is one of loss. What function and future can public law have in this rapidly transforming landscape, where globalized states and supranational institutions have ever-increasing importance? This book takes stock of the idea, concepts, and values of public law as it has developed alongside the growth of the modern state, and assesses its continued usefulness as a distinct area of legal inquiry and normativity in light of various historical trends and contemporary pressures affecting the global configuration of law in general. Divided into three parts, the first provides a conceptual, philosophical, and historical understanding of the nature of public law, the nature of private law, and the relationship between the public, the private, and the concept of law. The second part focuses on the domains, values, and functions of public law in contemporary (state) legal practice, as seen, in part, through its relationship with private domains, values, and functions. The final part engages with the new legal scholarship on global transformation, analysing the changes in public law at the national level, including the new forms of interpenetration of public and private in the market state, as well as exploring the ubiquitous use of public law values and concepts beyond the state.

This book provides a way to understand church–state conflict and the relationship between religion and liberal democracy in a contemporary era. It is argued that the fundamental reason for the ...
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This book provides a way to understand church–state conflict and the relationship between religion and liberal democracy in a contemporary era. It is argued that the fundamental reason for the church–state conflict is our aversion to questions of religious truth. By trying to avoid the question of religious truth, law and religion have ultimately reached a state of incoherence. It asserts that the answer to this dilemma is to take “the agnostic turn”—that is, to take an empathetic and imaginative approach to questions of religious truth, one that actually confronts rather than avoids these questions, but without reaching a final judgment about what that truth is.Less

The Agnostic Age : Law, Religion, and the Constitution

Paul Horwitz

Published in print: 2010-12-24

This book provides a way to understand church–state conflict and the relationship between religion and liberal democracy in a contemporary era. It is argued that the fundamental reason for the church–state conflict is our aversion to questions of religious truth. By trying to avoid the question of religious truth, law and religion have ultimately reached a state of incoherence. It asserts that the answer to this dilemma is to take “the agnostic turn”—that is, to take an empathetic and imaginative approach to questions of religious truth, one that actually confronts rather than avoids these questions, but without reaching a final judgment about what that truth is.

You find yourself in a court of law, accused of having hit someone. What can you say to avoid conviction? One thing you can do is simply to deny the accusation: ‘No’, you claim, ‘I didn’t do it.’ But ...
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You find yourself in a court of law, accused of having hit someone. What can you say to avoid conviction? One thing you can do is simply to deny the accusation: ‘No’, you claim, ‘I didn’t do it.’ But suppose you did do it. You may then give a different answer. ‘Yes, I hit him’, you grant, ‘but it was self-defence’; or ‘Yes, but I was acting under duress.’ To answer in this way—to offer a ‘Yes, but… ’ reply—is to hold that your particular wrong was committed in exceptional circumstances. Perhaps it is true that, as a rule, wrongdoers ought to be convicted. But in your case the court should set the rule aside. You should be acquitted. Within limits, the law allows for exceptions. But how do we draw the line between a rule and its exceptions? This is a long-debated question with important practical consequences, but legal theorists have found it surprisingly difficult to answer. This book tackles this persistent puzzle by offering a new, proof-based account of exceptions and their role in legal reasoning. It clarifies the relationship between legal defences and the allocation of burdens of proof, discusses the structure of legal rules and the interplay of claims and answers in the legal process, and sheds new light on the offence/defence distinction in criminal law.Less

Allowing for Exceptions : A Theory of Defences and Defeasibility in Law

Luís Duarte d'Almeida

Published in print: 2015-03-01

You find yourself in a court of law, accused of having hit someone. What can you say to avoid conviction? One thing you can do is simply to deny the accusation: ‘No’, you claim, ‘I didn’t do it.’ But suppose you did do it. You may then give a different answer. ‘Yes, I hit him’, you grant, ‘but it was self-defence’; or ‘Yes, but I was acting under duress.’ To answer in this way—to offer a ‘Yes, but… ’ reply—is to hold that your particular wrong was committed in exceptional circumstances. Perhaps it is true that, as a rule, wrongdoers ought to be convicted. But in your case the court should set the rule aside. You should be acquitted. Within limits, the law allows for exceptions. But how do we draw the line between a rule and its exceptions? This is a long-debated question with important practical consequences, but legal theorists have found it surprisingly difficult to answer. This book tackles this persistent puzzle by offering a new, proof-based account of exceptions and their role in legal reasoning. It clarifies the relationship between legal defences and the allocation of burdens of proof, discusses the structure of legal rules and the interplay of claims and answers in the legal process, and sheds new light on the offence/defence distinction in criminal law.

This book is a small contribution towards understanding the place of religion in modern India and the nature of Indian secularism. While there are several possible ways to approach this complex task, ...
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This book is a small contribution towards understanding the place of religion in modern India and the nature of Indian secularism. While there are several possible ways to approach this complex task, this book has chosen to do so by looking at the Indian Supreme Court judgments. This is not intended to be a comprehensive account of the Supreme Court's understanding of religion and secularism, but a discussion of judicial interventions in areas which are important to the life of the Indian nation and Indian secularism. Several public events have shaped the argument of this book, even though it might not be apparent from the text itself: the riots following the assassination of Indira Gandhi; the terrorist bombing of the World Trade Center in New York City on September 11, 2001; and the Mumbai terror attacks. One reaction to these acts of terrible violence, where religion or religious extremism could be seen to be central, might have been to argue for banishing religion from the public sphere. This book traverses an opposite path because it believes that religion and religiosity were not at the heart of these violent events. It argues that religious pluralism and religious tolerance are critical for the survival of the Indian nation, and it seeks to bring this view back to centre stage in the context of the courts in particular and public policy in general.Less

Articles of Faith : Religion, Secularism, and the Indian Supreme Court

Ronojoy Sen

Published in print: 2010-01-21

This book is a small contribution towards understanding the place of religion in modern India and the nature of Indian secularism. While there are several possible ways to approach this complex task, this book has chosen to do so by looking at the Indian Supreme Court judgments. This is not intended to be a comprehensive account of the Supreme Court's understanding of religion and secularism, but a discussion of judicial interventions in areas which are important to the life of the Indian nation and Indian secularism. Several public events have shaped the argument of this book, even though it might not be apparent from the text itself: the riots following the assassination of Indira Gandhi; the terrorist bombing of the World Trade Center in New York City on September 11, 2001; and the Mumbai terror attacks. One reaction to these acts of terrible violence, where religion or religious extremism could be seen to be central, might have been to argue for banishing religion from the public sphere. This book traverses an opposite path because it believes that religion and religiosity were not at the heart of these violent events. It argues that religious pluralism and religious tolerance are critical for the survival of the Indian nation, and it seeks to bring this view back to centre stage in the context of the courts in particular and public policy in general.

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